United States District Court, D. Colorado
[Copyrighted Material Omitted]
For Stephen Brett Ryals, an individual, Plaintiff: Daniel David Williams, LEAD ATTORNEY, Faegre Baker Daniels LLP-Boulder, Boulder, CO; Jennifer Lee Sullivan, LEAD ATTORNEY, Hetal Janak Doshi, Shelby Lynne Myers, Faegre Baker Daniels LLP-Denver, Denver, CO; Mark Silverstein, Sara J. Rich, LEAD ATTORNEYS, American Civil Liberties Union-Denver, Denver, CO.
For City of Englewood, Defendant: Monica N. Kovaci, LEAD ATTORNEY, Gillian Marie Fahlsing, Thomas Sullivan Rice, Senter Goldfarb & Rice, LLC, Denver, CO.
R. Brooke Jackson, United States District Judge.
Findings of Fact, Conclusions of Law and Order of Judgment
This case was tried to the Court from July 22 to 25, 2013. Plaintiff Stephen Brett Ryals challenges the constitutionality of the City of Englewood's Ordinance 34, which restricts where certain sex offenders--including Mr. Ryals--may reside. Mr. Ryals brings five claims under three theories, arguing that the ordinance (1) is preempted by state sex offender regulations, (2) retroactively and punitively changes the legal consequences of his original conviction, and (3) deprives him of his liberty without due process of law. The Court finds that the Englewood ordinance in its present form is preempted by Colorado state law.
Facts and Case History
A. Mr. Ryals' Sex Offense and Citation under Ordinance 34.
In 2001 Mr. Ryals had a consensual sexual relationship with a high school student who was ten years younger than him and who was a soccer player he coached. As a result of the unlawful relationship, Mr. Ryals pleaded guilty to criminal attempt to commit sexual assault on a child by one in a position of trust. In July 2001, he was sentenced to seven years of probation. Mr. Ryals later violated the probation terms by continuing to see his victim, and he was sentenced to two years in prison.
Mr. Ryals was released on April 13, 2003 and later discharged from parole on October 13, 2004. Mr. Ryals is required under the Colorado Sex Offender Registration Act (" CSORA" ) to register as a sex offender
for a decade after his release, and has complied with those registration requirements. He will be eligible to petition the court of his original conviction to discontinue registration in October 2014. Other than registration, he is no longer supervised under any state requirement related to his sex offense.
In 2012 Mr. Ryals began to search for houses with his wife, Erin Schoepke. He began his search in the City and County of Denver area but eventually expanded the search to the northern part of the City of Englewood which borders Denver. At that time, Mr. Ryals and Ms. Schoepke were living together in Denver in a house owned by Ms. Schoepke. On April 3, 2012 Mr. Ryals purchased a house within the Englewood city limits.
In anticipation of his move to Englewood, Mr. Ryals deregistered as a sex offender in Denver. On April 30, 2012, Mr. Ryals telephoned the Englewood Police Department and spoke with Detective Janellee Ball about the process of registering as a sex offender at his new residence. Detective Ball informed him that he could not live in Englewood because of his felony sex offense, apparently without inquiring about his specific street address. Nevertheless, Mr. Ryals reported to the police department on the next day to register at that residence. Upon registering on May 1, 2012, Mr. Ryals was cited for violating Ordinance 34, an ordinance governing sex-offender residency restrictions that was adopted by the City of Englewood in 2006. The criminal case based on that citation has been stayed pending this action deciding the validity of the ordinance. Mr. Ryals has remained living in his Englewood home.
B. City of Englewood Ordinance 34.
In July 2006 the City of Englewood received notice that the Colorado Board of Parole planned to place a " sexually violent predator" at an extended-stay hotel in the City that was within a block of a daycare center. This individual had originally been scheduled to be placed in Greenwood Village, a neighboring municipality, but Greenwood Village had promptly considered and on July 17, 2006 adopted a residency restriction that effectively put that municipality off limits for the placement of registered sex offenders. Alarmed about the prospect of a sexually violent predator residing near children, City officials immediately began to consider enacting restrictions similar to those which had successfully kept the sexually violent predator out of Greenwood Village.
On July 18, 2006 the Englewood City Attorney provided the Mayor and City Council with a copy of the Greenwood Village ordinance and other materials on the subject. Exhibit 3. The Council discussed a residency restriction ordinance at a study session in August 2006, and it was first read and discussed as an emergency ordinance at a public session on September
5, 2006. The ordinance was read again on September 18, 2006 and passed unanimously without further discussion. See Englewood, Colo., Code of Ordinances 06-34, § § 7-3-1 to -5 [hereinafter Englewood Code]. Exhibit 1. Because the ordinance was passed as an emergency ordinance, no further publication was required as with a conventional ordinance.
The City Council, in enacting the ordinance, made findings that sexual predators " present an extreme threat to the public safety" and " have a high rate of recidivism, making the cost of sex offender victimization to society at large extremely high." Id . § 7-3-1. " Removing such offenders from regular proximity to places where children are located and limiting the frequency of contact is likely to reduce the risk of an offense." Id . The Council declared its intent " to serve the City's compelling interest to promote, protect and improve the public health, safety and welfare by creating areas, around locations where children regularly congregate in concentrated numbers, where sexual predators and specified sexual offenders are prohibited from establishing temporary or permanent residence." Id .
The ordinance restricts the residency of two groups of sex offenders: (1) sexually violent predators as defined in C.R.S. § 18-3-414.5, and (2) certain sex offenders required to register under the CSORA, including those " convicted of a felony for an offense requiring registration," those with " multiple convictions for offenses requiring registration," and those " whose offense(s) requiring registration involved multiple victims." Englewood Code § 7-3-3. The ordinance makes it unlawful for these sex offenders
to establish a permanent residence or temporary residence within two thousand feet (2,000') of any school, park, or playground or within one thousand feet (1,000') of any licensed day care center, recreation center or swimming pool (other than pools located at private, single-family residences), or any property located adjacent to any designated public or private school bus stop, walk-to-school route, or recreational trail.
Section 7-3-4 provides exceptions, including a " grandfather clause" for those who " established the permanent or temporary residence prior to the effective date of [the ordinance]" unless that person committed his or her offense after that effective date. Mr. Ryals, as a registered felony sex offender, falls within the ambit of the ordinance and does not qualify for any of its exceptions.
The Englewood Police Department, through the efforts of Detective Ball and Detective Edward J. Disner, has enforced Ordinance 34 since its adoption in 2006. During trial the City presented a map showing the parts of the City that are off limits under Ordinance 34 as well as a list of residence addresses that are located in parts of the City that are unrestricted. Exhibit 7. The result, according to the City, is that 209 addresses within the City are not restricted, of which 126 addresses are residential. However, according to Peter Wagner, plaintiff's geographic information systems and mapping expert, the correct number of parcels available to sex offenders is 55 unrestricted parcels out of 11,314 parcels total in the City. Either way approximately 99% of the City is off-limits to most sex offenders.
These numbers also do not take into account whether any of the 126 or 55 unrestricted locations are actually available
for sale or rent. The Englewood Police Department gives out a map visually depicting the restricted areas, but for privacy reasons it does not provide the list that it developed in 2008 of the 126 residential addresses it suggests are unrestricted. A sex offender covered by the ordinance therefore must first find an available house for rent or sale in the very limited unshaded areas on the map of Englewood and then call the police department to verify that the address is in fact unrestricted. The police department handout provided to sex offenders warns that " [i]f you choose to contact the occupant who lives in a non shaded area not posted for rent/sale, you may be contacted by police, and could potentially be charged with trespassing." Exhibit 6.
Detective Ball testified that to ensure a " fair" process that is not otherwise provided for in the statute, the police department practices a " courtesy registration period" of two weeks from the date that the sex offender subject to Ordinance 34 appears. During this courtesy period, the sex offender is not cited for violating the ordinance and has the three choices: (1) find residency in Englewood outside the restricted areas, (2) find residency outside Englewood, or (3) update his or her registration at the end of the courtesy period to the restricted residence and be cited. As discussed later in this order, there is a fourth " option" -- " going underground" by simply not registering and living illegally either in Englewood or elsewhere.
The criminal citation for the ordinance can result in up to 360 days in jail and $1,000 fine. Detective Ball testified that the first of the three recognized options has never occurred--no one in the seven-year history of the ordinance has ever first attempted to register at a restricted address in Englewood and then been able to find residence in the City that does not violate Ordinance 34. The vast majority of sex offenders facing this criminal sanction have opted for the second " choice" and relocated to another city. Only two people, including Mr. Ryals, have taken the third option and stayed at their selected residence despite a citation under Ordinance 34.
The Court finds that as a practical matter this ordinance in its present form bans individuals falling within its terms, meaning anyone convicted of a felony sex offense of any kind and certain misdemeanor sex offenses, from living in the City of Englewood so long as they are required to register as a sex offender under Colorado law. The tiny part of Englewood that falls outside the concentric circles marking 2000 feet or 1000 feet, as the case may be, from schools, parks, playgrounds, day care centers, recreation centers, public pools, bus stops, walk-to school routes, and recreational trails leaves essentially no place for such offenders to live for all intents and purposes. The detectives who enforce the ordinance appear to agree. For example, in a case report concerning another offender dated September 10, 2012, Detective Disner wrote, " I advised Leslie that his conviction made him ineligible to live within the ...